Chin v. Gen. Mills, Inc., Civil File No. 12-2150 (MJD/TNL)

• Decision Date: 31 May 2013
• Docket Number: Civil File No. 12-2150 (MJD/TNL)
• Parties: TRACIE CHIN and SALVATORE MONTALBANO, individually, and on behalf of other members of the general public similarly situated, Plaintiffs, v. GENERAL MILLS, INC., Defendant.
• Court: U.S. District Court — District of Minnesota

TRACIE CHIN and SALVATORE MONTALBANO, individually,and on behalf of other members of the general public similarly situated, Plaintiffs,

v.GENERAL MILLS, INC., Defendant.

Civil File No. 12-2150 (MJD/TNL)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Dated: May 31, 2013

MEMORANDUM OF LAW & ORDER

Andrea Clisura, Antonio Vozzolo, and Juan E. Monteverde, Faruqi & Faruqi, LLP, and Shawn M. Perry, Perry & Perry PLLP, Counsel for Plaintiffs.

Jerry W. Blackwell, Benjamin W. Hulse, Emily A. Babcock, and Mary S. Young, Blackwell Burke PA, Counsel for Defendant.

I. INTRODUCTION

This matter is before the Court on Defendant's Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [Docket No. 20] The Court heard oral argument on March 15, 2013. For the reasons that follow, the Court grants Defendant's motion to dismiss.

II. BACKGROUND

A. Factual Background

1. Parties

Defendant General Mills is a Delaware corporation with its principal place of business in Minnesota. (Compl. ¶ 9.) General Mills produces, markets, and sells Nature Valley products, including "Protein Chewy Bars," "Chewy Trail Mix Granola Bars," "Yogurt Chewy Granola Bars," "Sweet & Salty Nut Granola Bars," and "Granola Thins." (Id. at ¶ 1.)

Plaintiffs are consumers who purchased one or more of the Nature Valley products. (Id. at ¶¶ 8-9.) Plaintiff Tracie Chin is a resident of Brooklyn, New York. (Id. at ¶ 7.) She purchased and consumed Nature Valley products on multiple occasions during the identified class period from various retailors, including Duane Reade, Pathmark, and Costco. (Id.) Chin purchased Nature Valley Granola Thins from a Costco store in Brooklyn, New York during the summer of 2012. (Id.) Chin purchased Nature Valley "Sweet & Salty Nut Granola Bars" from a Duane Reade store in New York, New York during the summer of 2011 and from a Pathmark store in Staten Island, New York at least four different times between 2011 and the spring of 2012. (Id.)

Plaintiff Salvatore Montalbano is a resident of East Brunswick, New Jersey. (Id. at ¶ 8.) On multiple occasions, Montalbano purchased and consumed Nature Valley "Chewy Trail Mix Granola Bars," "Sweet & Salty Nut Granola Bars," and "Granola Thins" from a Shop Rite store in New Jersey. (Id.)

2. Allegations of Misconduct

Plaintiffs allege that General Mills has engaged in unfair, unlawful, deceptive, and misleading practices in violation of Federal law, Minnesota state law, New York state law, New Jersey state law, and common law. (Id. at ¶¶ 1, 35-128.) Plaintiffs maintain that General Mills markets its Nature Valley products as "100% Natural" or "Natural." (Id. at ¶¶ 2-3, 15-18.) Plaintiffs assert that the Nature Valley products are not "natural" because the products contain "highly processed and non-natural sugar substitutes high fructose corn syrup and high maltose corn syrup, as well as the highly processed and non-natural texturizer Maltodextrin." (Id. at ¶¶ 4-5, 19-34.)

Plaintiffs maintain that General Mills represents that the products are "100% Natural" in order to command a premium price for the products, take away market share from its competitors, and increase its own profits." (Id. at ¶¶ 3, 42-46.) Plaintiffs Chin and Montalbano assert that they relied on GeneralMills' representations that the products were "100% Natural" when they purchased the products. (Id. at ¶¶ 7-8.) Plaintiffs Chin and Montalbano also assert that they would not have purchased the products under the same terms if they had known that they contained "highly processed and non-natural sugar substitutes high fructose corn syrup and high maltose corn syrup, as well as the highly processed and non-natural texturizer Maltodextrin." (Id.)

B. Procedural Background

On August 31, 2012, Plaintiffs filed a Complaint in this Court against General Mills alleging nine counts relating to the Nature Valley Granola Bars. [Docket No. 1] On November 26, 2012, General Mills moved to dismiss the Complaint for lack of jurisdiction. [Docket No. 8] On December 17, 2012, the parties filed a stipulation with the Court whereby the parties agreed to continue General Mills' motion to dismiss pending the filing of Plaintiffs' Amended Complaint. [Docket No. 15]

On January 4, 2013, Plaintiffs filed their Amended Complaint. [Docket No. 19] The Amended Complaint alleges Count I: Violation of Written Warranty under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq.; Count II: Violation of Implied Warranty of Merchantability under the Magnuson-MossWarranty Act, 15 U.S.C. § 2301, et seq. and under New York and New Jersey State Law; Count III: Unjust Enrichment under state law; Count IV: Breach of Express Warranty under state law; Count V: Breach of Implied Warranty of Merchantability under state law; Count VI: Fraudulent Misrepresentation under state law; Count VII: Violation of Minnesota Consumer Protection Laws; Count VIII: Violation of the New York Unfair and Deceptive Business Practices Law, N.Y. Gen. Bus. Law § 349, et seq.; Count IX: Violation of the False Advertising Law, N.Y. Gen. Bus. Law § 350, et seq.; Count X: Violation of the New Jersey Consumer Fraud Act, STAT. ANN. § 56:8-1, et seq.

Plaintiffs seek to sue on behalf of "all persons in the United States who, within the relevant statute of limitations period, purchased Nature Valley products that contained high fructose corn syrup or high maltose corn syrup or Maltodextrin and were packaged, labeled, marketed, or advertised as being "100% Natural." (Compl. at ¶ 48.) Plaintiff Chin also seeks to represent a "subclass defined as all members of the Class who purchased Nature Valley products in New York. (Id. at ¶ 49.) Plaintiff Montalbano also seeks to represent a "subclass defined as all members of the Class who purchased Nature Valley products in New Jersey." (Id. at ¶ 50.)

On January 22, 2013, Defendants filed the current motion to dismiss and allege that the Complaint should be dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

III. DISCUSSION

A. Motion to Dismiss for Lack of Standing

General Mills argues that this Court does not have subject matter jurisdiction over Plaintiffs' claims relating to Nature Valley products that they did not purchase because Plaintiffs have failed to plead facts demonstrating their standing to seek such relief.

"A plaintiff has the burden of establishing subject matter jurisdiction, for which standing is a prerequisite." Jones v. Gale, 470 F.3d 1261, 1265 (8th Cir. 2006) (citations omitted). The Eighth Circuit has explained:

[t]o establish standing, a plaintiff is required to show that he or she had 'suffered an injury in fact, meaning that the injury is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.' Second, the injury must be traceable to the defendant's challenged action. Third, it must be 'likely' rather than 'speculative' that a favorable decision will redress the injury.

Id. (quoting South Dakota Farm Bureau, Inc. v. Hazeltine, 340 F.3d 583, 591 (8th Cir. 2003)).

In order to properly dismiss for lack of subject matter jurisdiction underRule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments. In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (citations omitted). Here, the Court is presented with a facial challenge as General Mills does not contest the validity of the Amended Complaint's factual allegations for the purpose of their standing argument.

General Mills maintains that Plaintiffs seek relief for alleged false representations made on Protein Chewy Bars and Yogurt Chewy Granola Bars even though Plaintiffs do not allege in their Amended Complaint that they ever purchased these products. General Mills argues that Plaintiffs lack Article III standing for these products and Plaintiffs improperly seek to represent a class of consumers who purchased products that the named Plaintiffs did not purchase.

The Court agrees with General Mills and dismisses Plaintiffs' claims relating to the alleged false representations made in regard to the Protein Chewy Bars and Yogurt Chewy Granola Bars for lack of standing. It is clear from the face of Plaintiffs' Complaint that neither Chin nor Montalbano purchased theProtein Chewy Bars or Yogurt Chewy Granola Bars. The named plaintiffs in a class action may not rely on injuries that the putative class may have suffered, but instead must allege that they personally have been injured. Lewis v. Casey, 518 U.S. 343, 357 (1996) ("That a suit may be a class action . . . adds nothing to the question of standing, for even named plaintiffs who represent a class 'must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.'") (quotations omitted); Thunander v. Uponor, Inc., 887 F. Supp. 2d 850, 863 (D. Minn. 2012) ("A class representative must have standing to assert claims on his or her own behalf in order to have standing to assert claims as a class representative"). The Court notes that other courts routinely dismiss claims in consumer class actions that attempt to seek relief relating to products that the named plaintiffs have not purchased. See Carrea v. Dreyer's Grand Ice Cream, Inc., No. C 10-01044 JSW, 2011 WL 159380, at *3 (N.D. Cal. Jan. 10, 2011) (dismissing claims without prejudice as to products that the named plaintiff did not purchase); Hemy v. Perdue Farms, Inc., Civil Action No. 11-888 (FLW), 2011 WL 6002463, at *11 (D.N.J. Nov. 30, 2011) (dismissing claims with prejudice as to products that named plaintiff did not purchase); Liebersonv. Johnson & Johnson Consumer Co., Inc., 865 F. Supp. 2d 529,...